Florida State University Law Review Volume 13 Issue 3 Article 13 Fall 1985 A Sobering New Approach to Liquor Vendor Liability in Florida Lucinda Burwell Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Legislation Commons, and the State and Local Government Law Commons Recommended Citation Lucinda Burwell, A Sobering New Approach to Liquor Vendor Liability in Florida, 13 Fla. St. U. L. Rev. 827 (1985) . https://ir.law.fsu.edu/lr/vol13/iss3/13 This Comment is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. A SOBERING NEW APPROACH TO LIQUOR VENDOR LIABILITY IN FLORIDA COMMENT BY LUCINDA BURWELL* I. INTRODUCTION Public awareness of the carnage caused by drunk drivers in re- cent years has been the impetus for state and local governments to implement programs to reduce the problems caused by those who drink and drive. Because many of the fatal trips undertaken by drunk drivers originate at drinking establishments, a primary focus has been on imposing liability on licensees for injuries caused by their inebriated patrons.' Such liability, or dram shop liability, ex- ists in a majority of states today by legislative enactment or by developments in the case law.2 In states where dram shop liability does not exist, legislatures are being forced to reexamine the law in light of the frequency of alcohol related accidents and public demand for preventative ac- tion. Citizens' groups and governmental bodies alike have endorsed dram shop legislation as an appropriate state response to the drunk driving problem.' In 1983, the Presidential Commission on Drunk Driving proposed a multifaceted program to reduce soci- ety's tolerance toward drunkenness and drunk driving and to build a badly needed "community consensus behind effective counter- measure programs" to prevent drunk driving.4 The report included a recommendation that all states enact dram shop laws.5 The Na- tional Highway Traffic Safety Administration of the Department of Transportation (NHTSA) likewise includes the existence of dram shop liability as one of twenty-one criteria for states seeking incentive grants for drunk driving programs6 Opponents of dram shop liability contend that a bar owner 7 is in *Candidate for the degree Juris Doctor, Florida State University College of Law. 1. W. COZZENS & M. WAGNER, USE OF INTERMEDIARIES IN DWI DETERRENCE, VOL. III REP. No. DOT HS 806 536 (1983). 2. For a list of states that impose liability, see infra notes 21-23. 3. Notable groups endorsing dram shop laws include: Remove Intoxicated Drivers (RID), Mothers Against Drunk Drivers (MADD), The Presidential Commission on Drunk Driving, and the National Highway Traffic Safety Administration of the Department of Transporta- tion (NHTSA). J. Mosher, Legal Liabilities of Licensed Alcoholic Beverage Establishments: Recent Developments and Policy Implications 14 (June 1984) (unpublished manuscript). 4. PRESIDENTIAL COMMISSION ON DRUNK DRIVING, FINAL REPORT 5 (1983). 5. Id. at 11. 6. Uniform Standards for Highway Safety Programs, 23 CFR § 1309.6(b) (1985). 7. For purposes of this paper, use of the term "bar owner" or "tavern owner" is not 828 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 13:827 no position to supervise a patron's actions once the patron leaves the premises, and thus the owner should not be held liable for any injuries which may later occur.8 Opponents also argue that from a moral standpoint, the responsibility for injuries caused by one who voluntarily becomes intoxicated should rest solely on that individ- ual.9 Moreover, the imposition of liability on a tavern owner is in- herently unfair because it increases the licensee's insurance premi- ums while minimizing the responsibility of the customer for his own negligent acts. 10 Presently, thirteen states disallow dram shop liability for one or more of these reasons." Supporters of dram shop liability rejoin that licensees should share in the responsibility of accidents caused by their drunk pa- trons. Experienced licensees are able to tell when an individual has had too much to drink or is underage, and they are in a position to prevent accidents by refusing to serve those who are likely to harm themselves or others.1 2 Proponents of dram shop liability contend that because tavern owners derive a profit from the sale of alcohol, they can purchase liability insurance and spread the cost by in- creasing prices.1 s Advocates liken dram shop liability to products liability in that the seller should be responsible for the conse- quences of the use of his product.14 Additionally, supporters say that the ability of alcohol to impair one's judgment places a duty on the purveyor to exercise some care in preventing the impaired meant to preclude others who are licensed vendors of liquor. 8. Mosher, Dram Shop Liability and the Prevention of Alcohol-Related Problems, 40 J. STUD. ALCOHOL 773, 779 (1979). 9. This stems from a traditional view that those who drink excessively are morally repre- hensible and that placing part of the blame on a licensee will only encourage the drinker to continue his immoral behavior. See, e.g., Kindt v. Kauffman, 129 Cal. Rptr. 603 (Cal. Ct. App. 1976). 10. J. Mosher, A New Direction in Alcohol Policy: Comprehensive Server Intervention, in TOwARD THE PREVENTION OF ALCOHOL PROBLEMS 57, 64 (1984). 11. States that do not impose liability are: Arkansas, Delaware, Kansas, Maryland, Mon- tana, Nebraska, Nevada, New Hampshire, Oklahoma, South Carolina, Texas, Virginia, and West Virginia. NAT'L Assoc. OF STATE ALCOHOL & DRUG ABUSE DIRECTORS, ALCOHOL AND DRUG ABUSE REPORT 21-22 (1984). 12. Kelly v. Gwinnell, 476 A.2d 1219, 1233 (N.J. 1984) (Garibaldi, J., dissenting). 13. Id. at 1234. 14. As stated in a newspaper editorial: The argument that the buyer should beware is hollow when the product inher- ently is capable of impairing the user's judgment. Alcohol is unusual among legal products in that respect. Anyone who drinks is at risk of miscalculating his own capacity on any given occasion; once he has made that error, he cannot judge his own condition. Heavy drinkers and those in the early, undetected stages of alco- holism are especially vulnerable to loss of control. Miami Herald, Dec. 20, 1984, §A at 30, col. 1. 19851 DRAM SHOP LIABILITY customer from driving and endangering others' lives.'5 Thirty-eight 6 states now impose some type of liability on liquor licensees.1 This recent interest in dram shop liability has not been over- looked by Florida lawmakers. During the 1984 Regular Session, dram shop legislation was introduced but did not pass either house.1 7 As a result, a special task force on dram shop responsibil- ity was appointed by the Governor's Highway Safety Commission as an ad hoc advisory body to study the possibility of developing legislation for the 1985 Regular Session of the legislature. This Comment deals with the "dram shop" legislation proposed during the 1985 Regular Session. Although traditional dram shop legislation did not fare well in the session, one bill directed toward increasing dram shop responsibility received considerable support and suggests future action by the legislature in this area. This Comment provides an overview of current dram shop law, follows the proposed legislation through the session, and concludes with an analysis of the legislature's action in the area of dram shop liability. II. OVERVIEW OF TRADITIONAL DRAM SHOP LIABILITY Dram Shop legislation originated in the United States in the mid-1800's during the temperance movement as part of an effort to clarify a social stand against debauchery and public drunkards as- sociated with town saloons.' 8 These civil acts were often promul- gated to force tavern owners out of business by making them fi- nancially responsible for the support of the habitual drunkard's family.1 9 With the advent of the automobile and the repeal of pro- hibition, these statutes took on a new significance because many of them could be used to extend liability to bar owners for injuries caused in drunk driving cases.20 Today these statutes are strongly 15. Mosher, supra note 8, at 780. 16. See infra notes 21-23. 17. Fla. CS for HB 189 (1984), which would have imposed liability on any person who knowingly served alcoholic beverages to intoxicated persons, failed to pass the House by a 42-69 vote. FLA. H.R. JouR. 704 (Reg. Sess. 1984). Fla. SB 112 (1984), a similar bill, died in the Senate Comm. on Jud'y-Civ. FLA. LEGS., HISTORY OF LEGISLATION, 1984 REGULAR SES- SION, HISTORY OF SENATE BILLS at 37, SB 112. 18. Temperance advocates, who believed that alcohol promoted immorality and led to the decay of traditional family values, sought dram shop acts when legislatures refused to take stronger action. These acts were primarily a symbolic gesture of a social stand against alcohol, and they were rarely enforced. Mosher, supra note 8, at 773. 19. Id. 20. Id. at 774. 830 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 13:827 endorsed as a method to deter alcohol-related accidents. In states where legislatures have been slow to act or have enacted laws with restrictive provisions, courts have often taken it upon themselves to provide recovery against vendors of alcoholic beverages through theories based on common law. Currently, twenty-three states have liability statutes."' Fourteen states and the District of Columbia have imposed liability through court decisions based on common law,22 and nine states have both statutory and common law 28 liability. Numerous dram shop acts exist today, some dating back to the turn of the century.